PetitionMandamus06!30!10Counce DVA 101pgs

No.
09-___
IN THE
Supreme Court of the United States

————
SAUNDRA J. COUNCE, R.N.,
Petitioner,
v.
SECRETARY OF THE UNITED STATES

DEPARTMENT OF VETERANS AFFAIRS,
Respondent.
————
On Petition for a Writ of Mandamus to the

United States Court of Appeals
for the Sixth Circuit
————
PETITION FOR A WRIT OF MANDAMUS
————
Of Counsel JEFFREY C. GRASS, Pro Bono

Counsel of Record
MICHAEL J. MYERS, Pro Bono
Bank of America Tower
THE UNIVERSITY OF SOUTH
101 E. Park Blvd.
DAKOTA SCHOOL OF LAW
Suite 600
414 East Clark Street
Plano, Texas 75074
Vermillion, SD 57069
(214) 273-7290
(605) 677-6343
jcgrass@gmail.com
June 30, 2010

QUESTIONS PRESENTED
1. If it is the law of this case as held by the Merit
Systems Protection Board (MSPB) at the successful
urging of Respondent-Appellee VA, that Petitioner-
Appellant had no MSPB appeal rights because, as
MSPB stated she was “subject to the VA’s Discipli-
nary Appeals Board [DAB] procedure” as the result of
her “serving under a permanent appointment” and
“therefore . . . DAB had ‘exclusive jurisdiction’ to
review appellant’s removal,” should principles of re-
spect for the integrity of administrative adjudication
demand that Respondent-Appellee VA be ordered to
provide Petitioner-Appellant DAB appeal rights
because it is the law of the case, particularly because
it was Respondent-Appellee that persuaded the MSPB
to dismiss her MSPB appeal because Petitioner-
Appellant had DAB hearing and due process rights?
2. Should the Federal District Court and/or the
Sixth Circuit Court of Appeals have applied judicial
estoppel and ordered VA to stop reversing its posi-
tions on Petitioner-Appellant’s permanent or proba-
tionary employment status (VA made two reversals,
its first was to deny Petitioner-Appellant her MSPB
rights, the second reversal was after MSPB dismissed
her claims and she appealed to VA and was in federal
court), after VA was successful in having MSPB refuse
to exercise its jurisdiction to provide Petitioner-Appel-
lant any relief because MSPB ruled that Petitioner-
Appellant had DAB rights so necessarily she was “VA
Permanent,” by ordering the parties bound by the
MSPB’s decision so that judicial estoppel and law of
the case establish in Petitioner-Appellant’s case that
she has the rights of a non-probationary VA employee
before the VA (and in federal court) so she can get the
DAB due process hearing she needs to have her
claims fairly adjudicated before the VA?
(i)
TABLE OF CONTENTS
Page
QUESTIONS PRESENTED................................ i
TABLE OF AUTHORITIES ................................ vi
JURISDICTION .................................................. 1
AN ORDER BY WRIT OF MANDAMUS CAN
ISSUE ............................................................... 2
SUMMARY FACTS AND PROCEEDINGS ....... 2
ARGUMENT ........................................................ 22
CONCLUSION .................................................... 27
APPENDICES
APPENDIX A....................................................... 1a
Agency briefs to the MSPB
1. 01-02-04 Agency Motion to Dismiss ........... 1a
2. 05-03-04 Agency Petition for Review ......... 7a
APPENDIX B....................................................... 11a
09-19-03 Agency Letter to Petitioner .............. 11a
Separation During Probationary Period ......... 11a
APPENDIX C....................................................... 14a
MSPB’s OPINIONS
1. 03-02-04 Judge Clancy Initial Decision ..... 15a
2. 12-23-04 Full Board MSPB - Final Order .. 19a
3. 05-16-05 Federal Circuit - Final Order ...... 22a
APPENDIX D ...................................................... 23a
Disciplinary Appeals Board [DAB]
Dismissal Letter 05-03-04 ............................ 23a
(iii)
iv
TABLE OF CONTENTS—Continued
Page
APPENDIX E....................................................... 25a
Three of SF 50-B’s
Office of Personnel Management [OPM]
Standard Form 50-B
[SF 50-B] Notification of Personnel Action Forms
1. 06-17-01 OPM of SF 50-B ........................... 25a
2. 04-21-02 OPM of SF 50-B ........................... 26a
3. 06-17-03 OPM of SF 50-B ........................... 27a
APPENDIX F ....................................................... 28a

VA FORM 10-2623 PROFICIENCY REPORT
1. 06-15-02 FORM 10-2623 - GOOD .............. 28a
2. 06-15-03 FORM 10-2623 - GOOD .............. 30a
3. 08-17-03 FORM 10-2623 - SUBSTITUTED. 32a
4. 08-21-03 FORM 10-2623 - SUBSTITUTED . 34a
APPENDIX G ...................................................... 36a

08-01-03 Notification of Nurse Professional
Standards Board [NPSB] hearing ............... 36a
APPENDIX H ...................................................... 39a

05-07-01 – UNPUBLISHED,
Masood N. Khan v. Togo D. West, Jr.,
Secretary DVA, United States Court of
Appeals for the Fourth Circuit No. 00-2450 ... 39a
v
TABLE OF CONTENTS—Continued
Page
APPENDIX I ........................................................ 45a
The Sixth Circuit Court of Appeals
1. 11-12-09 ORDER Affirming the District
Court ................................................................. 45a
2. 04-01-10 ORDER Motion to Clarify/
Petition for Re-Hearing Denied ....................... 48a
vi
TABLE OF AUTHORITIES
CASES Page
In re Ford Motor Co., 110 F.3d 954 (3d Cir.
1997) .......................................................... 2
Kerr v. United States District Court, 426
U.S. 394 (1976) .......................................... 1-2
Khan v. West, 8 F. App’x. 243, 2001 WL
475941 (4th Cir. May 7, 2001) (No. 00-
2450) .......................................................... 20
New Hampshire v. Maine, 532 U.S. 742,
121 S.Ct. 1808 (2001) ........................... 22, 23, 26
Sporck v. Peil, 759 F.2d 312 (3d Cir. 1985) . 1
University of Tennessee v. Elliott, 478 U.S.
788, 106 S. Ct. 3220 (1986) ....................... 22, 27
Valentine-Johnson v. Roche, 386 F.3d 800
(6th Cir. 2004) ........................................... 24, 26
STATUTES
38 U.S.C. § 7401(1) ....................................... 4
38 U.S.C. § 7403 ........................................... 7
38 U.S.C. § 7403(b)(1)................................... 3
38 U.S.C. § 7403(b)(2)................................... 4
38 U.S.C. § 7403(f)(3) ................................... 15
38 U.S.C. § 7405(a)(1)(A).............................. 3
38 U.S.C. § 7461(a) ....................................... 12, 15
38 U.S.C. § 7461(b)(1)................................... 12, 15
38 U.S.C. § 7461(c)(1) ................................... 15
MISCELLANEOUS
5 C.F.R. § 315.704 ........................................ 5
vii
TABLE OF AUTHORITIES—Continued
Page
5 C.F.R. § 315.704(a)(1)-(2) .......................... 4
5 C.F.R. § 315.801 ........................................ 5
5 C.F.R. § 315.802 ........................................ 5
5 C.F.R. § 315.802(a) .................................... 4
Davis on Administrative Law and Restate-
ment of Judgments (1982) ........................ 22
viii
TIMELINE
1. Petitioner hired under 38 U.S.C. 7405 (a) (1) (A)
and began work June 17, 2001. (Appendix A and
E, p. 5a and 25a.)
2. Probationary period for Respondent’s registered
nurses hired under Chapter 74 of Title 38 is 2
years (§ 7403 (b) (1) of Title 38) if performance is
“satisfactory”. (§ 7403 (b) (2).)
3. April 21, 2002, Petitioner was re-appointed under
38 U.S.C. 7401 (1), Respondent having “lost” her
entry paperwork and then delayed processing it
until April 2002. (Appendix A and E, p. 6a and
26a.)
4. June 17, 2002, received excellent end-of-first year
Proficiency Report. (Appendix F, p. 28a-29a.)
5. About May 20th, 2003 Petitioner’s nurse- supervisor
prepared and gave her an excellent end-of-second-
year Proficiency Report for Petitioner to review,
sign, and return to supervisor. (Appendix F, p. 30a-
31a.)
6. May 30, 2003, Petitioner signed her timely “good”
2nd anniversary Proficiency Report (Attachment
F, p. 30a-31a), and returned the supervisor’s copy,
which “disappeared” and was later substituted
for a “bad” Proficiency Report on August 17, 2003.
(Appendix F, p. 32a-33a.)
7. June 15, 2003, Petitioner was designated “perma-
nent” with “tenure” pursuant to 38 U.S.C. § 7403 by
an official VA Notification of Personnel Action
Standard FORM 50-B, issued to Petitioner at the
completion of her probationary period of two-
years. (Appendix E, p. 27a.)
ix
8. August 1, 2003, Petitioner summoned to appear
before Nurse Professional Standards Board, a
summary review body that has jurisdiction only
over nurses who have not completed the VA’s
two-year probation. (Appendix G, p. 36a-38a.)
9. When separating Petitioner, after she attained
her § 7403 permanent appointment, Respondent
asserted that her § 7404 (1) appointment status
effective April 21, 2002, re-started her probatio-
nary period, extending it until April 20, 2004.
(Appendix A, p. 2a, 9a.)
10. August 21, 2003, Petitioner was tried and found
guilty of unprofessional conduct by a summary
hearing procedure used only for “probationaries,”
despite Petitioner arguing that her due process
and fair hearing rights as a permanent VA nurse
were denied to her. (Appendix B, p. 11a-13a.)
11. September 19, 2003, “Separation During Pro-
bationary Period” letter, VA declaring unequivo-
cally that Petitioner was probationary and had
only the rights she had received from the sum-
mary review before the Nurse Professional Stan-
dards Board. (Appendix B, p. 11a-13a.)
12. During Petitioner’s Appeal at Merit Systems Pro-
tection Board (MSPB), Respondent VA successfully
argued that Petitioner was a permanent VA nurse
who was entitled to VA’s Disciplinary Appeals
Board (DAB) procedures; they were her exclusive
remedy; and consequently MSPD could not take
jurisdiction. (Appendix A, p. 2a-3a, 9a, 17a-18a.)
13. When Petitioner applied to VA for her DAB due
process and hearing rights, Respondent denied
her any DAB fair hearing rights, for the reason
she was “probationary,” (Appendix D, p. 23a-
x
24a), the opposite of the necessary assumption
Respondent used in successfully arguing for the
MSPB to dismiss Petitioner’s appeal for lack of
jurisdiction. (Appendix C, p. 1a-10a, 17a-18.)
14. Petitioner litigated pro se in the District Court
and in the Sixth Circuit Court of Appeals, but
was unsuccessful in getting either court to
acknowledge the issue of judicial estoppel against
Respondent VA, or that the MSPB’s ruling that
she was a permanent VA nurse, is the law of the
case.
xi
IN THE
SUPREME COURT OF THE UNITED STATES
Saundra J. Counce, R.N., )
Petitioner, )
v.
) ORDER
Secretary of the United States
Department of Veterans Affairs, )
Respondent.
By reason of Defendant-Appellee Veterans Admin-

istration’s successful arguments to the United States
Merit Systems Protection Board, Petitioner’s claims
were foreclosed from adjudication before that admin-
istrative body. Additionally, Defendant-Appellee’s
arguments and positions were the cause of the hold-
ing by the Merit Systems Protection Board, creating
the law of this case, that Petitioner is entitled to the
hearing and associated due process rights afforded by
the Disciplinary Appeals Board procedures provided
to Title 38 Veterans Administration employees who
completed their probationary periods of employment
and were permanent employees of the Veterans
Administration.
For the above reasons the Sixth Circuit Court
of Appeals is ORDERED to remand this case to
Defendant-Appellee Veterans Administration who
shall be Ordered to provide to Petitioner the rights
that Defendant-Appellee provided to its registered
nurses who were permanent employees as of Septem-
ber 2003, by reason of completing the probationary
period of employment required by Section 7403(a)(2)(e)
and Section 7403(b)(1) of Title 38 United States Code.
ENTERED BY ORDER OF THE SUPREME
COURT OF THE UNITED STATES.
Signed: Date
IN THE
Supreme Court of the United States

————
No. 09-___
————
SAUNDRA J. COUNCE, R.N.,
Petitioner,
v.
Respondent.
————
On Petition for a Writ of Mandamus to the
for the Sixth Circuit
————
PETITION FOR A WRIT OF MANDAMUS
————
JURISDICTION
A mandamus is an order to a public agency or
governmental body to perform an act required by law
when it has neglected or refused to do so.
The writ of mandamus will issue only in extraordi-
nary circumstances. See Sporck v. Peil, 759 F.2d 312,
314 (3d Cir. 1985). As a precondition to the issuance
of the writ, the petitioner must establish that there is
no alternative remedy or other adequate means to
obtain the desired relief, and the petitioner must
demonstrate a clear and indisputable right to the
relief sought. Kerr v. United States District Court,
2
426 U.S. 394, 403 (1976). A writ is not a substitute
for an appeal; only if a direct appeal is unavailable
will the court determine whether a writ of mandamus
will issue. See In Re Ford Motor Co., 110 F.3d 954,
957 (3d Cir. 1997). Petitioner-Appellant has ex-
hausted available administrative and judicial tri-
bunals to obtain the hearing before Respondent-
Appellee’s Disciplinary Appeals Board that she is
entitled to. Petition for Writ of Mandamus appears
to be the remedy that will best conserve judicial time
and resources, meeting the criteria of Supreme Court
Rule 20. (28 U.S.C. § 1651 (a)).
AN ORDER BY WRIT OF MANDAMUS

CAN ISSUE
On the unique facts of this case where Respondent-
Appellee (Respondent) U.S. Veterans Administration
(VA) successfully argued and established at the Merit
Systems Protection Board (MSPB) that Petitioner-
Appellant (Petitioner) has the right to a hearing
before VA’s Disciplinary Appeals Board (DAB), and
as the relief before this Court Petitioner is seeking
only her DAB hearing at the VA that Respondent VA
has continually denied to her contrary to principles of
judicial estoppel and law of the case, an Order per
Writ of Mandamus can properly issue from this Court
to require Respondent VA to provide to Petitioner her
VA administrative due process and hearing rights
that Respondent VA successful argued to MSPB the
Petitioner is entitled to as a matter of law.
SUMMARY FACTS AND PROCEEDINGS

Petitioner Saundra J. Counce, a registered nurse
with no prior U.S. Government service (Petitioner),
was hired by VA on June 17, 2001. The next day she
3
took the oath of office and began work as a “full-time
temporary” under § 7405(a)(1)(A) of Chapter 74 of
38 U.S.C. (Appendix A and E, p. 5a and 25a.) Chapter
74 of Title 38 grants VA special authority to hire and
pay nurses and other medical professionals without
regard to the Civil Service laws in Title 5. 1 The
probationary period for VA nurses, physicians and
similar medical professionals is two years (38 U.S.C.
§ 7403(b)(1) 2. Probation starts on the employee’s
“anniversary date,” 3 more technically called “Service
1
§ 7405. Temporary full-time appointments, part-time appoint-
ments, and without-compensation appointments.
(a) The Secretary, upon the recommendation of the
Under Secretary for Health, may employ, without
regard to civil service or classification laws, rules, or
regulations, personnel as follows:
(1) On a temporary full-time basis, part-time basis, or
without compensation basis, persons in the follow-
ing positions:
(A) Positions listed in section 7401 (1) of this title.
(including registered nurses) (Emphasis added.)
2
“Appointments described in subsection (a) [e.g., physicians,
nurses, physician assistants hired under Chapter 74] shall be
for a probationary period of two years.” Further, VA Handbook
5005, April 15, 2002, provides, in Part II, Chapter 3, b. Length of
Probationary Period: “The probationary period for employees
appointed on or after December 20, 1979, is 2 years. In addi-
tion, para. c. Last Day of Probationary Period, provides, in
subpara. (2), that “For employees paid on an hourly basis
(nurses, nurse anesthetists . . . . the probationary period is
completed at the end of the last scheduled duty before the
employee’s anniversary date . . . (Emphasis added).
3
VA HANDBOOK 5005/7 APRIL 15, 2002 PART II CHAP-
TER 3
SECTION F. APPOINTMENTS UNDER 38 U.S.C. 7401.
4
Computation Date” (SCD) or anniversary date. A VA
employee’s SCD appears in Block 31 of STANDARD
FORM 50-B, NOTIFICATION OF PERSONNEL
ACTION. (See Appendix E, p. 27a, block 31.) A VA
employee’s probationary period keeps running in her
favor, so long as her performance at VA is not written
up as “unsatisfactory.” (See § 7403(b)(2).)
On April 21, 2002, after 10 months of satisfactory
work, Petitioner was converted from “temporary
full-time” to “permanent” VA nurse status under
§ 7401(1) of Chapter 74, 38 U.S.C. The Standard
Form 50-B recited in “Remarks” that her conversion
appointment was “Subject to completion of 2 year
probationary period commencing 04-21-2002.” (Ap-
pendix A and E, p. 6a and 26a.) Petitioner, who at
that time knew very little about VA’s personnel
system, assumed VA had authority to extend her
probationary period for an extra 10 months and
therefore expected to be probationary through April
20, 2004. 4 Petitioner was surprised when she re-
3. PROBATIONARY PERIOD FOR 38 U.S.C. 7401(1)

APPOINTEES
b. Length of Probationary Period.
c. Last Day of Probationary Period.
(2) For employees paid on an hourly basis (nurses,
nurse anesthetists, PAs (physician assistants), and
EFDAs (expanded-function dental auxiliaries)()), the
probationary period is completed at the end of the
last scheduled duty before the employee’s anniver-
sary date. (Emphasis added).
4
VA and Office of Personnel Management regulations appear
to be to the contrary. (See VA Handbook 5005/7 (fn. 3); 5 CFR
315.704 (a) (1) and (2) (temporary employment counts toward a
probationary period); 5 CFR 315.802 (a) (“The probationary
period required by § 315.801 is 1 year and may not be
extended.”).
5
ceived her Proficiency Report in mid-June 2002 (VA
FORM 10-2623). 5 VA had entered her SCD as “6-17-
01.” (Appendix F, p. 28a.) From that entry it
appeared her probationary period was half over. She
could expect to be “permanent”—tenured—by June
2003, not April 2004, as the April 21, 2002 conversion
Form 50-B recited. (Appendix A and E, p. 6a and
26a, section 45. REMARKS, lines 2-3).
5 CFR § 315.704 Conversion to career employment from inde-

finite or temporary employment.
(a) General. Employees serving after February 7, 1968, in
competitive positions under indefinite appointments or tempo-
rary appointments pending establishment of a register or as
status quo employees acquire competitive status and are entitled
to have their employment converted to career employment when
such employees:
(2) Have rendered satisfactory service for the 12 months
immediately preceding the conversion; and . . . . (Emphasis
added) (a) The first year of service of an employee who is given a
career or career-conditional appointment under this part is a
probationary period . . . (Emphasis added).
5 CFR § 315.802 Length of probationary period; crediting
service.
(a) The probationary period required by §315.801 is 1 year
and may not be extended. (Emphasis added.)
5
Petitioner was rated “Satisfactory” in her June 2002 Profi-
ciency Report. Her supervisor, Linda Wyatt, RN, commented
favorably on her professional performance:
“Mrs. Counce is self-directed in organizing and providing
skilled nursing assessments and care to patients with
multivariate nursing diagnoses and psychological needs . . .”
“Mrs. Counce has been a role model and is one of the
preceptors for nurses who are new to 2 North. She is
supportive of her colleagues, and encouraging of new staff.
I have received several compliments regarding her tact and
patience in precepting new nurses. . .” (Appendix F, p. 28a.)
6
The end of May 2003, Petitioner’s immediate
supervisor, Linda Wyatt, RN., gave Petitioner her
second annual Proficiency Report, plus a copy for her
files. Wyatt asked Petitioner to review, sign, and
return the Proficiency Report, keeping the copy for
her personal records. Again, VA’s SCD entry on that
employee rating document, VA FORM 10-2623, was
“6-17-01.” 6 (Appendix F, p. 30a-31a.) On May 30,
2002, Petitioner signed one copy of her Proficiency
Report and placed it in her supervisor’s office when
Wyatt was away from her desk. (Counce Affidavit:
DE#21 Part 2 Appendix C.) Petitioner kept the un-
signed duplicate. (See Appendix F, p. 30a-31a.)
6
Petitioner’s supervisor rated her “Satisfactory” at the end of
her second year, and once again made favorable comments:
Practice: “Mrs. Counce is an experienced nurse who contin-
ues to bring a high level of care and compassion with her to
2 North. She is respected by new nursing staff, veteran
nursing staff, her patients and their families. . . . I have
personally received favorable comments about Mrs. Counce
from staff and from patients and their families. . . .”
Performance: “Mrs. Counce actively self-appraises her own
nursing skills, and is willing to attend educational offer-
ings on her free time . . .”
Collegiality: “Mrs. Counce also appraises and monitors the
nursing skills and quality of care provided by other nurses
on 2 North, and shares her observations with the Nurse
Manager. She has been very supportive of the new nursing
orientees on 2 North. Mrs. Counce also serves as a role
model and resource to the nursing joint 2 North staff.”
Collaboration: “A recent new nurse orienting to 2 North had
a very difficult time in acquiring the nursing skills and self-
confidence to feel secure on 2 North. Mrs. Counce heard of
the problems, and asked that the new nurse be placed on
her weekend rotation so that she could assist this new staff
member in orienting to 2 North, at a more comfortable pace,
so that we have retained this valued new nurse.”
7
Petitioner never again saw the end-of-second year
Proficiency Report she signed and placed in her
supervisor’s office on May 30, 2003. 7 Despite Peti-
tioner’s repeated requests and motions, Respondent-
Appellee VA did not produce in discovery the “lost”
2002-2003 Proficiency Report Petitioner signed and
turned in on May 30, 2003.
VA’s next personnel action was on June 13, 2003.
Petitioner was given a permanent appointment under
§ 7403 of Chapter 74 of 38 U.S.C. (Appendix E,
p. 27a.) Effective June 15, 2003, Petitioner was
classified as “permanent” per Block 24 of FORM 50-
B, “Tenure.” For the second time, the Block 31, SCD
entry was “06-17-01. 8 This Standard Form 50-B had
no qualifying remarks like the Form 50-B Petitioner
received on April 21, 2002. That NOTIFICATION
OF PERSONNEL ACTION stated that Petitioner
7
Affidavits in the record by both the union president and
union steward, B.R. Hardison and Nelda Rouse, RN, affirm that
on May 30, 2003, they saw and discussed the Proficiency Report
that Petitioner’s supervisor gave her about 10 days before,
rating her second performance year (retained, unsigned copy
at Appendix F, p. 30a-31a). When President Hardison saw that
evaluation he exclaimed: “Sign that sucker, and get it in!”
(Hardison Affidavit, p. 1, ¶ 2 (DE21Part4Page30Para2Line4),
Rouse Affidavit, ¶ 13-15 (DE21Part5Page5-8.)
8
Section 7403 (a) (1) provides:
Appointments under this chapter of health-care profes-
sionals to whom this section applies may be made only
after qualifications have been satisfactorily established in
accordance with regulations prescribed by the Secretary,
without regard to civil-service requirements.
Subsection (a) (2) states:
This section applies to the following persons appointed
under this chapter:
. . . (E) Nurses.
8
was to stay on probation for two years starting April
21, 2002. (Agency’s Appendix B to MSPB submission
to Judge Clancy, also at Appendix E, p. 27a.)
August 1, 2003, Petitioner was given notice that
her professional performance would be reviewed by a
Nurse Professional Standards Board (NPSB) to be
convened August 21, 2003. (Appendix G, p. 36a-38a.)
The purpose of the NPSB was:
1 “. . . to conduct a summary review of your per-
formance and conduct during your probationary
period and make a recommendation concerning
your retention in or separation from the
Veteran’s Health Administration. This review is
being held pursuant to 38 U.S.C. (United States
Code) section 7403 (b), 9 and will be based upon
available records and information furnished by
you and others who may be called by the NPSB.”
2. “The NPSB is to review the following alleged
deficiencies in your performance and conduct:”
“Falsification of medical records related to medi-
cation administration, insubordination (failure to
report to duty, not training, as directed by the
Nurse Manager), and failure to follow acceptable
9
Section 7403 (b) provides:
(1) Appointments described in subsection (a) shall be for a
probationary period of two years. (Emphasis added.)
(2) The record of each person serving under such an
appointment in the Medical, Dental, and Nursing Services
shall be reviewed from time to time by a board, appointed
in accordance with regulations of the Secretary. If such
a board finds that such person is not fully qualified and
satisfactory, such person shall be separated from the
service.
9
nursing standards of care and practice related to
patient care.” (Appendix G) (Emphasis added.)
VA’s August 1st notice warned Petitioner that
(because VA asserted she was still “probationary,” see
para. 1, next above) she did not have the right to full
assistance of a representative or legal counsel during
the hearing, or the right to examine third parties’
evidence presented at the NPSB. Despite her inabil-
ity to cross-examine witness testimony or to question
evidence that could include damaging hearsay, such
unexamined materials could be used by the NPSB to
pass judgment on her performance as a nurse. The
August 1st letter cautioned Petitioner about the
summary nature of NPSB proceedings:
“This is not an adversarial proceeding, so your
representative’s role will be limited to assisting
you in exercising your right to respond orally
and/or in writing to the reasons for the review.” 10
August 17, 2003, Petitioner was handed a different
2002-2003 second year Proficiency Report (VA FORM
10-2623), than the “Satisfactory” Proficiency Report
she was given, had signed, and placed in her super-
visor’s office the prior May 30th. This substituted
Proficiency Report was prepared by her same super-
visor, Linda Wyatt, RN; but this time Wyatt rated
Petitioner “Low Satisfactory” for the same year,
“From 6-17-02 To 6-17-03”. (Appendix F, p. 32a-33a.)
10
During the NPSB’s review Petitioner’s representative was
not allowed to speak or ask questions even when Petitioner was
testifying or being questioned; Petitioner was excluded from
the hearing except when she was testifying; and no transcript
was made of the proceedings. The record consists of copies of
occasional handwritten notes and individual observations made
by those who sat as the NPSB.
10
Petitioner was surprised. Counting the 2002-2003
Proficiency Report Nurse-Supervisor Wyatt gave her
on May 20th that Petitioner reviewed, signed and
turned in, Wyatt had rated Petitioner’s professional
performance “Satisfactory” for two years running.
(Appendix F, p. 28a-31a.)11 Petitioner did not sign
the August 17, 2003 substituted Proficiency Report.
(Appendix F, p. 29a-31a.)
Despite VA having noticed Petitioner to appear
before an NPSB, a summary review board 12 with
11
In addition to substituting “Low Satisfactory” for “Satisfac-
tory,” Supervisor Wyatt’s comments were 180 degrees (Valentine-
Johnson, 386 F.3d at 810) from her comments on Petitioner’s
annual Proficiency Reports that Wyatt gave her for the prior
two years. (Appendix F, p. 32a-35a.)
Under “Practice,” e.g., Wyatt stated:
“Mrs. Counce has difficulty in managing and delivering
care in an efficient and timely manner.”
For “Performance,” Wyatt observed:
“Mrs. Counce has a chronic problem with organization and
prioritization of care, and usually stays over after the shift
is over to complete her documentation.”
Under “Collegiality,” Nurse-Supervisor Wyatt wrote:
“Mrs. Counce is very willing to critique the nursing care of
her fellow nurses, but does not scrutinize her own nursing
practice as carefully.”
Wyatt commented on Petitioner’s “Collaboration:”
“Mrs. Counce consults the team physicians when necessary,
but has not developed sound interpersonal skills to deal
with other health care providers. . . .” (Emphasis added).
12
VA HANDBOOK 5005/17 APRIL 15, 2002 PART II
CHAPTER 3 SECTION C. PROFESSIONAL STANDARDS
BOARDS
11
jurisdiction limited to nurses who have not completed
their probationary service, 13 VA’s SCD entry in Block
11 of that “new” Proficiency Report—her anniversary
date was for the fourth time—6-17-01.” (see fn. 14)
(Appendix F, p. 32a-33a.) On its face, that entry
certified that by August 17, 2003, Petitioner had
completed 26 months of creditable service and
1. ESTABLISHMENT a. Professional Standards Boards for

occupations listed in 38 U.S.C. 7401(1) act for, are responsible
to, and are agencies of the Under Secretary for Health in
matters concerning appointments, advancements, and probatio-
nary reviews of physicians, dentists, podiatrists, optometrists,
chiropractors, nurses [RNs], . . . . Boards will determine eligibil-
ity and recommend the appropriate grade for appointments
under authority of 38 U.S.C. 7401(1) and 7405(a)(1) ((A)); recom-
mend candidates for advancements; [ ] and conduct probationary
reviews.
13
VA HANDBOOK 5021 APRIL 15, 2002 PART III CHAP-
TER 1.
PROBATIONARY PERIOD ACTIONS
TITLE 38 PROBATIONARY EMPLOYEES
1. SCOPE. This chapter contains the policy and procedures
needed for taking actions against title 38 employees serving on
a probationary period under 38 United States Code (U.S.C.)
7403(b) in the Department of Veterans Affairs (VA). This in-
cludes employees appointed under 38 U.S.C. 7401(1), i.e., nurses
(Emphasis added.)
VA’s HANDBOOK 5021 also makes it abundantly clear, when
delineating the hearing rights of medical professionals like
registered nurses who, like Petitioner, are appointed under
§ 7401 (1), that such 7401 (1) appointees do not have any rights
to VA’s due process and fair adjudicative procedures at the DAB
(including the right to be represented by counsel at all times)
(CHAPTER I, PART II, 1. SCOPE, unless and until, such
§ 7401 (1) nurse appointees like Petitioner “. . . have
satisfactorily completed the probationary period required
by 38 U.S.C. 7403 (b). (at fn. 15: 1. SCOPE, a. (1)). (Emphasis
added.)
12
therefore she had been a permanent VA nurse for 2
months.
The day of her NPSB hearing, August 21, 2003,
Petitioner was handed another copy of VA’s substi-
tuted 2002-2003 Proficiency Report. Petitioner’s
supervisors ordered her to review that Proficiency
Report and sign it, to record that she received it. She
refused to sign. Her supervisor, Linda Wyatt, RN,
noted in Block 19a, ‘Signature of Employee: “Ms.
Counce refused to sign proficiency. LW (Linda
Wyatt) 8-21-03.” (Appendix F p. 34a-35a.)
That substituted second annual Proficiency Report
evaluating Petitioner for her professional performance
June 2002 through June 2003, also had Petitioner’s
SCD entry as “6-17-01.” 14 (Appendix F, p. 7.)
Petitioner was terminated by action of the NPSB,
despite her objections to denial of the due process she
was entitled to as a VA nurse who had completed her
two years of probationary service. As a permanent
VA nurse, for “charges based on conduct or perfor-
mance” (38 U.S.C. § 7461 (a)) such as Petitioner was
facing, she had the due process hearing rights pro-
vided before VA’s Disciplinary Appeals Board (DAB)
(§ 7461 (b) (1), 15 including the right,
14
Counting the Standard FORM 50-B effective June 15, 2003
that appointed Petitioner a permanent VA nurse under § 7403
of Chapter 74, 38 U.S.C. (Appendix E, p. 27a), by August 21,
2003, VA had officially notified Petitioner in five documents
(Appendix F, p. 28a, 30a, 32a, 34a, Block 11: SERVICE
COMPUTATION DATE, and Appendix E, p. 27a, Block 24,
TENURE: 1—PERMANENT).
15
VA HANDBOOK 5021 APRIL 15, 2002 CHAPTER I.
PART II. DISCIPLINARY PROCEDURES UNDER TITLE 38,
DISCIPLINARY AND MAJOR ADVERSE ACTIONS
13
. . . to be represented by an attorney or other
representative of the employee’s choice at all
stages of the case. (38 U.S.C. § 7462 (b) (2)).
(Emphasis added.)
Instead, VA ordered Petitioner tried by an NPSB
(Appendix G, p. 36a-38a) - August 1, 2003 Notice of
the NPSB hearing), a summary review board with
jurisdiction limited to probationary VA employees
who had not completed a two year probationary
period. (38 U.S.C. § 7403 (b) (1)). 16
1. SCOPE
a. This part governs disciplinary and major adverse actions
based on conduct or performance in the Department of Veterans
Affairs (VA).
(1) The provisions of this chapter apply to VA employees
holding a full-time, permanent appointment under 38 United
States Code (U.S.C.) 7401(1) who have satisfactorily completed
the probationary period required by 38 U.S.C. 7403(b). Included
are: . . . . (Emphasis added.)
(e) Nurses . . . .
3. POLICY . . . .
c. Employees are entitled to be represented by an attorney
or other representative of the employee’s choice at all stages of
the case.
d. Actions covered under this part are subject to the prohi-
bited personnel practices listed in 5 U.S.C. 2302, prohibiting:
(1) Discrimination because of race, color, religion, sex,
national origin, age, disabling condition, marital status, or par-
tisan political reasons; and
(2) Reprisal for the proper exercise of an employee’s
legal or administrative rights.
16
VA HANDBOOK 5021 APRIL 15, 2002 CHAPTER I.
PART III. PROBATIONARY PERIOD ACTIONS
CHAPTER I. TITLE 38 PROBATIONARY EMPLOYEES
14
In spite of VA’s repeated official personnel actions
that by mid-June 2003 appeared to make Petitioner
1. SCOPE. This chapter contains the policy and procedures

needed for taking actions against title 38 employees serving on
(sic) a probationary period under 38 United States Code (U.S.C.)
7403 (b) in the Department of Veterans Affairs (VA). This in-
cludes employees appointed under 38 U.S.C. 7401 (1), i.e., physi-
cians, dentists, nurses. . . .
f. PROFESSIONAL STANDARDS BOARDS. Professional
Standards Boards will review the work records of each employee
serving a probationary period in accordance with the provisions
of this chapter. . . .
3. SUMMARY BOARD REVIEWS
d. Employee Rights. Employees subject to summary Board
review have the right to: . . .
(5) Be represented by an individual of the employee’s
choice . . . . A summary review is not an adversarial procedure.
The representative’s role is limited to assisting the employee in
exercising the right to reply orally and/or in writing to the
reasons for the review. . .
f. Conduct of Board Review . . . .
(5) A verbatim recording of the review will not be made
unless the Chairperson deems it necessary. . . .
(6) The Chief, Human Resources, or designee, will serve
as a technical adviser to the Board. . . .
(7) To obtain essential facts, the Chairperson may call
persons before the Board to answer questions that may assist
the Board in its review. This includes persons who are believed
to possess pertinent information about the employee or the cir-
cumstances which led to the review. . . .
(9) Only Board members are entitled to be present when
an individual is being interviewed, except that an employee’s
representative may be present when the employee is being
interviewed, Employees or others who may be called upon to
furnish information will not be subject to cross-examination, and
the Chairperson of the Board will ensure that this does not occur.
(Emphasis added)
15
“VA permanent” (see fn. 14), the September 19, 2003
termination letter is captioned: “Saundra Counce,
RN-Separation During Probationary Period.” Rea-
sons alleged for her termination included Petitioner’s
“failure to follow acceptable nursing standards of care
and practice related to patient care.” (Appendix B,
p. 11a-13a.)
Petitioner’s case proceeded to the Merit Systems
Protection Board. MSPB had jurisdiction to hear her
claims involving professional conduct and competence
if she was a probationary VA employee (38 U.S.C.
§ 7403 (f)(3), but not if she was a permanent VA
employee. (38 U.S.C. § 7461 (a), (b)(1), and (c)(1);
§ 7462 (a) (1) (A) (B). If permanent, 38 U.S.C.
§ 7462—titled “Major adverse actions involving pro-
fessional conduct or competence,” granted exclusive
jurisdiction to VA’s DAB:
(a)(1) Disciplinary Appeals Boards appointed
under section 7464 of this title shall have
exclusive jurisdiction to review any case—
(A) which arises out of (or which includes) a
question of professional conduct or competence
of a section 7401 (1) employee; and
(B) in which a major adverse action was taken.
(Emphasis added).
VA reversed position at the MSPB, successfully
arguing that MSPB lacked jurisdiction because Peti-
tioner “was a permanent employee” (Appendix A,
p. 2a, ¶ 3) and consequently she had the 38 U.S.C.
§ 7462 hearing rights of a permanent VA employee
(38 U.S.C. §§ 7461 through 7464) before the VA’s
Disciplinary Appeals Board (DAB). Although VA
noted that in its view Petitioner had not yet satisfied
16
its probationary period requirements, 17 Respondent-
Appellee VA expressly represented to the MSPB
that because it had appointed her under 38 U.S.C.
§ 7401 (1), “Appellant was a permanent employee. . . .”
(Appendix A, p. 2a) VA’s MEMORANDUM IN SUP-
PORT OF MOTION FOR DISMISSAL FOR LACK
OF JURISDICTION asserted:
She is therefore subject to the exclusive remedy
for major adverse actions, that is, an appeal to
the VA Undersecretary for Health for the empa-
nelment of a Disciplinary Appeals board. She
has not made such an appeal. MSPB is without
jurisdiction to hear this appeal of a major ad-
verse action by a 38 U.S.C. 7401 (1) employee.” 18
(Appendix A, p. 2a-3a, ¶ 3.)
17
As indicated throughout, the only way the VA’s DAB can
have “exclusive jurisdiction” over Petitioner’s appeal, as Respon-
dent VA successfully argued to the MSPB, is if she was a
permanent VA nurse. Respondent could have presented the
June 15, 2003 FORM 50-B to establish more easily to MSPB
that Petitioner was a permanent employee so that DAB, not
MSPB, had jurisdiction over her appeal. But that would have
locked Respondent VA into the stance that Petitioner was
“permanent.” From Respondent’s arguments and flip flops as to
whether Petitioner was “fish or fowl,” it appears that when
Respondent argued to MSPB that Petitioner was permanent
and had DAB hearing rights, it intended to reverse that position
as soon as MSPB denied jurisdiction over Petitioner’s appeal, as
it did on May 3, 2004 and thereafter in federal court when Peti-
tioner attempted to “collect” on her loss at MSPB by requesting
her DAB hearing at VA.
18
Petitioner points out that Respondent did not include in its
submissions to MSPB, nor make any mention of VA’s June 15,
2003 FORM 50-B that made Petitioner a VA permanent nurse
pursuant to §7403 (Appendix E p. 27a), although VA has not
denied it was issued. Unlike the April 21, 2002 appointment
citing §7401 (1), the June 15, 2003 appointment pursuant to
17
Further on, VA’s MEMORANDUM IN SUPPORT
OF MOTION FOR DISMISSAL represented to the
MSPB:
. . . [S]he is subject to Disciplinary Appeals Board
procedure. Since a discharge is expressly defined
in 38 U.S.C. 7461 (c) (2) (E) as a major adverse
action, Appellant should have filed an appeal
with the Disciplinary Appeals Board. She did
not do so. Appellant had Title 38 remedies
. . . .” (Appendix A, p. 2a-3a.) (Emphasis added).
MSPB’s administrative judge accepted Respondent-
Appellee’s representations that Petitioner had DAB
hearing rights at the VA; that the DAB had “exclu-
sive jurisdiction” over Petitioner’s claims:
. . . [It] appears that appellant’s removal was a
major adverse action involving professional con-
duct as contemplated under 38 U.S.C. “§ 7462,
and such an action is not reviewable by the Board
. . . . Appellant alleged that she was not subject to
this exclusive internal review process because she
was not a permanent employee. . . . The agency
claimed, however, that she was subject to
the Disciplinary Appeals Board (DAB) pro-
cedure. (Appeal File, Tab 6). Indeed, while
appellant may have been subject to completion of
a probationary period, she was serving under a
permanent appointment to a position listed at 38
U.S.C. § 7401 (1). Id. It therefore appears that
§ 7403 was unconditional. (Appendix E, p. 27a, compare the

“Remarks” section with the April 21, 2002 FORM 50-B.) There
was no recitation on the June 15, 2003 FORM 50-B, as there
was on the April 21, 2002 FORM 50-B, that Petitioner was
required to serve any probationary time beyond the two years
from her SCD or anniversary date, June 17, 2001, as provided
by § 7403 (b) (1).
18
the DAB had “exclusive jurisdiction” to review
appellant’s removal . . . .”
“In light of the foregoing, I find that appellant
has not been subjected to a matter appealable to
the Board, and that the Board lacks jurisdiction
over the appeal. . . . It is therefore appropriate
that the appeal be dismissed for lack of juris-
diction.” (Appendix A, p. 17a-18a.) (Emphasis
added.)
Yet when Petitioner appealed to VA for the DAB
hearing with full due process that VA represented to
the MSPB she was entitled to—a proper administra-
tive hearing Petitioner knew she needed to properly
present her claims against VA—VA changed position
for the second time and denied her request for a
DAB due process hearing. For DAB rights’ purposes,
Respondent-Appellee VA once again insisted Peti-
tioner remained “probationary.” According to VA,
Petitioner had no DAB hearing rights, opposite to the
position Respondent took at MSPB when it needed to
have her appeal dismissed.
That surprise was in VA’s response letter to
Petitioner-Appellant of May 3, 2004:
Disciplinary Appeals Boards appointed under 38
U.S.C. 7464 have exclusive jurisdiction to review
major adverse actions, which arise out of, or
include, a question of professional conduct or
competence of section 7401(1) employees who have
successfully completed their probation period.
Employees appointed under Section 7401(1) serve
a two (2) year probationary period. You were
appointed under 38 U.S.C. 7401(1) on April 21,
2002. Your two-year probation period commenced
on this date. [See Appendix E, p. 26a, the April
19
21, 2002 FORM-50-B] Prior service in a tem-
porary appointment under Section 7405(A)(1)
does not count towards completion of the
probation period. Therefore, you had not
successfully completed your probation period
at the time of your discharge on October 3,
2003. Therefore, you are not entitled to
appeal your discharge to a VA Disciplinary
Appeals Board. (Appendix D)19 (Emphasis added.)
The following December 23, 2004, the full MSPB
affirmed the administrative judge’s dismissal (Appen-
dix C, p. 19a-21a), based on the VA’s Motion to the
MSPB. The Federal Circuit dismissed Petitioner’s
appeal. (Appendix C, p. 22a.)
In District Court and before the Sixth Circuit
Court of Appeals, VA switched back to its original
position as to Petitioner’s status. Respondent con-
tended that Petitioner’s summary hearing at the
NPSB afforded her all the rights she was entitled to
at VA—there was no DAB jurisdiction over her
claims—for the reason she never satisfied the two
year probationary period VA required per the NOTI-
FICATION OF PERSONNEL ACTION FORM 50-B
dated April 21, 2002 (Appendix A and E, p. 6a and
26a.)20
19
Again VA ignored, as Respondent-Appellee has through-
out these proceedings, the NOTIFICATION OF PERSONNEL
ACTION, FORM 50-B (Appendix E, p. 27a), that VA officially
issued on June 15, 2003. That VA Notification of Personnel
Action made Petitioner a permanent VA nurse pursuant to 38
U.S.C. § 7403. The June 15, 2003 FORM 50-B was issued with-
out any qualification that she had to perform additional service
in order to become “permanent.” (see fn. 18).
20
Petitioner has searched the VA’s personnel manuals and so
far has not been able to find any official VA regulation that
allowed VA officials to extend Petitioner’s statutory two-year
20
In a summary opinion issued November 22, 2009,
the Sixth Circuit affirmed the District Court’s grant
of summary judgment. The opinion did not mention
Petitioner’s arguments or the MSPB holdings called
to the Court’s attention, concerning the preclusive
effects of the MSPB’s holdings that Petitioner had
DAB hearing rights. Nor did the Sixth Circuit
discuss Respondent’s contradictory positions that
should have estopped it from taking opposing legal
positions for pure convenience. (Appendix I, p. 45a-
47a.)
Petitioner filed a Motion to Clarify the first opinion
by the Sixth Circuit, treated by that Court also as a
petition for rehearing. (Appendix I, p. 48a-49a.)
probationary period (§ 7403 (b) (1)) beyond June 16, 2003.

Unless the probationary employee’s work performance is sub-
standard and those lapses are documented, employees such as
Petitioner who are hired as “full-time temporary” (§ 7405 (a) (1) (A))
employees, receive probationary-time credit for such service.
(Khan v. West, No 00-2450, 4th Cir. 2001,Unpublished, Per
Curiam, Wilkinson, C.J., Motz, J., and Duffy, J., District Ct.
Judge, [VA ordered to credit physician for his temporary full-
time (§ 7405 ) service upon his conversion to VA permanent
under § 7401 because § 7403 fixes probationary period at 2
years for all employees appointed under Chapter 74 of Title 38,
which includes § 7405, 7401, and 7403 appointments (at p. 3-4,
Appendix H, p. 39a-44a). Petitioner received a “Satisfactory”
Proficiency Report for the period June 2001 through June 2002,
including a number of favorable comments by her supervisor,
Linda Wyatt, RN (Appendix F, p. 28a-31a) for the period—which
included June 2001 through April 21, 2002—the time Petitioner
worked as a full-time temporary under her § 7405 (a) (1) (A)
appointment. That Proficiency Report contained all positives
and no negatives. (Appendix F, p. 28a-29a, see fn. 5). For
purposes of this Petition For Writ of Mandamus urging appli-
cation of law of the case, it does not matter if the MSPB was
right or wrong. Its holdings are the law of this case: Petitioner-
Appellant does have DAB rights at the VA.
21
After Petitioner-Appellant filed her Motion to Clarify
the Sixth Circuit’s first opinion because that Court
had not responded to her contentions, including that
VA’s NPSB had no jurisdiction to hear and determine
the charges against her because by then she was “VA
permanent” as held by the MSPB (see fn. 17), the 6th
Circuit expressly affirmed the lower court’s ruling
that Petitioner-Appellant remained a probationary.
(Appendix I, p. 45a-47a.) Despite Petitioner arguing
to the Court of Appeals and presenting copy of the
MSPB’s holding that Petitioner was necessarily a
“VA Permanent” because the VA’s DAB had “exclu-
sive jurisdiction” over her claims (see Pro se Plaintiff-
Appellant’s Dual Motion to Extend Time and Motion
to Clarify, Dec. 23, 2009, p. 5, 15-17), the Court of
Appeals did not mention the MSPB’s holdings or
Respondent-Appellee’s opposite arguments made for
pure convenience. The Court did respond to Peti-
tioner’s argument that VA’s NPSB lacked jurisdic-
tion:
In her motion, Counce [Petitioner] argues that
the Nurse Professional Standards Board, which
found that Counce falsified medical records and
failed to follow acceptable nursing standards of
care, lacked jurisdiction to review her employ-
ment performance. The record clearly indicates
that Counce was still under a two-year probatio-
nary period, measured from her starting date as a
permanent employee, when she was brought
before the Nurse Professional Standards Board.
Thus, she was subject to its jurisdiction. See 38
U.S.C. § 7403 (b) (1) and (2). (Appendix I, p. 2-
3) 21 (Appendix I, p. 49a.)
21
Petitioner is not seeking relief because the 6th Circuit was
wrong on the law as to whether Petitioner-Appellant was
22
ARGUMENT
As a matter of law, since the point MSPB ruled
Petitioner had DAB hearing rights because serving
under a permanent appointment, it has been “the law
of the case,” that she has full due process hearing
rights at the VA’s DAB. As held in University of
Tennessee v. Elliott, 478 U.S. 788, 798-799 and fn. 6
106 S.Ct. 3220, 3226 (1986), judgments rendered by
administrative tribunals are binding on the parties in
later stages of the same matter, where the tribunals
have jurisdiction and the parties are accorded fair
procedures (citing Davis, Administrative Law and
Restatement of Judgments, § 83 (1982). More re-
cently, in State of New Hampshire v. State of Maine,
532 U.S. 742, 747, 121 S.Ct. 1808 (2001). This Court
unanimously ruled, in the context of a State-to-State
settlement agreement one party was seeking to
enforce, that:
[W]here a party assumes a certain position in a
legal proceeding, and succeeds in maintaining
that position, he may not thereafter, simply
because his interests have changed, assume a
contrary position, especially if it be to the preju-
dice of the party who has acquiesced in the posi-
tion formerly taken by him (citations omitted).
probationary or permanent. The issue is not whether the 6th

Circuit was wrong or right on that point of law. The question is
if on the facts of this case, where Respondent-Appellee took
opposite positions as to Petitioner’s due process hearing rights
including right to assistance of counsel at a hearing on the
charges against her, the doctrines of law of the case and judicial
estoppel require Respondent-Appellee VA to provide to Peti-
tioner-Appellant the Disciplinary Appeals Board hearing rights
that Respondent-Appellee successfully argued to the MSPB that
she had at the VA.
23
This rule, known as judicial estoppel, ‘generally
prevents a party from prevailing in one phase of
a case on an argument and then relying on a
contradictory argument to prevail in another
phase. (citing, along with cases, 18 Moore’s
Federal Practice 134. 30, p. 134-62 (3rd Ed. 2000)
(“The doctrine of judicial estoppel prevents a
party from asserting a claim in a legal proceed-
ing that is inconsistent with a claim taken by
that party in a previous proceeding”), citing 18 C.
Wright , Miller and Cooper, Federal Practice and
Procedure 4477, p. 782 (1981) (“absent any good
explanation, a party should not be allowed to
gain an advantage by litigation on one theory,
and then seek an inconsistent advantage by
pursuing an incompatible theory.”)).
In New Hampshire v. Maine, This Court stated the
general conditions for application of judicial estoppel,
including the perception that “. . . [w]ithin the first
[here the VA] or the second court [MSPB] was misled.”
(532 U.S. at 747.) This Court further observed that
because judicial estoppel is an equitable doctrine,
. . . [W]e do not establish inflexible prerequisites
or an exhaustive formula for determining the
applicability of judicial estoppel. Additional con-
siderations may inform the doctrine’s application
in specific factual contexts. (532 U.S. at 747.
In this case, the Circuit Court of Appeals did not
speak to Petitioner’s contentions that VA should have
been estopped to assert she was probationary after
having the MSPB dismiss her appeal based on VA’s
position that she had all the due process hearing
rights of a permanent, non-probationary VA nurse.
Valentine-Johnson v. USAF, 386 F.3d 800, 809-813
(2004) is a persuasive case of an Air Force civilian
24
employee the Air Force disadvantaged by switching
positions as to her MSPB and related rights in
federal court. 22
Petitioner was born in 1949, to a mother who is
100% Mexican. She has mild but easily compensable
reading dyslexia. When hired at VA, she had over 30
years of experience as a superior-rated nurse. She
also had been married for over 30 (now 40) years and
was principal caregiver to a Vietnam veteran, Donald
A. Counce, who by then was severely disabled from
Agent Orange exposure, brain trauma from mine
explosions, and post-traumatic stress disorder (PTSD).
Because of her experience and personally-acquired
sensitivity to the special needs of the Veteran
patients, she was expressly tasked by her supervisor
to attempt to stop the bullying and related nurse-on-
nurse violence that dulled nurses’ empathy and
caused them to neglect the Veterans they were
charged to care for. (See Appendix F, p. 30a-35a.)
Petitioner has litigated Pro Se at all stages until
the instant Petition, when Counsel of Record and Of
Counsel are representing her Pro Bono. By the time
Petitioner was terminated, her spouse was not able to
work regularly and she was the sole support of her
family of six that still included a child in school.
Petitioner had no money or other resources to hire an
22
The similarities between Petitioner’s case and Valentine-
Johnson are unusually close, especially the unethical reversal of
position that specially disadvantaged both pro se Petitioner, and
pro se Plaintiff-Appellant Valentine-Johnson. The court held:
In the interest of preventing the Air Force conduct from
abusing the judicial process through cynical gamesman-
ship, achieving success on one position, then arguing the
opposite to suit an exigency of the moment … we conclude
that judicial estoppel is applicable. (386 F.3d at 812.)
25
attorney; and no lawyer would take her case on
contingency. As a nurse, who at that time was not at
all familiar with legal process—and understandably
baffled by VA’s arcane personnel system and various
official’s contradictory interpretations of VA’s person-
nel regulations—she was not able to successfully
challenge VA’s position that it had kept her as a
“probationary” beyond the two year period estab-
lished by 38 U.S.C. § 7403 (b)(1). 23
Additionally, Respondent-Appellee VA should be
estopped to deny her application for a DAB appeal,
after VA conclusively asserted when she was targeted
while still working at the VA, that she had no DAB
rights; her exclusive remedy was through NPSB’s
summary procedures that had allowed her to be
terminated based mostly on unchallenged, unexa-
mined hearsay. (See Appendix G, p. 36a-38a and
Appendix B, p. 11a-13a.) Further, VA’s May 3, 2004
letter to Petitioner expressly rejected her application
for a DAB appeal hearing (Appendix D, p. 23a-24a,
the May 04 rejection letter) after the MSPB dis-
missed her claims because MSPB held she did have
DAB rights. (Appendix C, p. 19a-21a.)
VA’s successful arguments to MSPB, for example,
were in conflict with the clear and simple words in
VA Handbook 5021. Para. 1 states that for nurses
and other medical staff appointed under the statutes
within chapter 74 of Title 38 (e.g., 7405 (A) (1), 7401
(1) and 7403, the three statutes under which Peti-
tioner was appointed, converted and re-appointed or
23
The court’s opinion in Valentine-Johnson, expressly weigh-
ed the factor that “she was” at critical times, proceeding pro se,
and making her best effort to have all of her claims heard. (386
F.3d at 813.)
26
re-converted), nurses and other medical staff do not
obtain DAB procedure rights until they have com-
pleted their two years of probation. (See fn. 13.)
Because it was VA’s official position, written on the
April 21, 2002 NOTIFICATION OF PERSONNEL
ACTION, FORM 50-B that Petitioner remained
probationary until April 21, 2004 (Appendix A, p. 6a,
Appendix E, p. 26a) in no way could VA have argued
to the MSPB in good faith that Petitioner was
“permanent” by Summer 2003 and consequently had
any DAB due process and hearing rights.
VA was successful in its badfaith arguments,
however, and the MSPB dismissed Petitioner’s claims
in that forum. Dismissal at the MSPB severely
disadvantaged Petitioner, because MSPB was appro-
priate for litigating technical issues of federal person-
nel classification and law. VA successfully persuaded
Administrative Judge Clancy (Appendix C, p. 15a-
18a), and the full board of the MSPB (Appendix C, p.
19a-21a) (appeal dismissed by the Federal Circuit
(Appendix C, p. 22a) to accept VA’s representations,
despite that Petitioner was, once again, denied the
right to have her claims litigated properly. VA
persuasively argued Petitioner had DAB rights (due
process entitlements Petitioner had only if she had
satisfied her 2 year probation period, which VA was
adamant she had not, and could not have, until April
21, 2004); that as a matter of law DAB had “exclusive
jurisdiction” over Petitioner’s claims; consequently
MSPB was required by law to dismiss all of Peti-
tioner’s claims. Employees are entitled to have a
forum for their claims unless the applicable statutes
clearly forbid MSPB, e.g., from litigating the claims
at issue. (See Valentine-Johnson, supra, at 812.)
27
Petitioner cited to the MSPB’s holding in her litiga-
tion in federal court, and specifically petitioned the
6th Circuit to acknowledge the legal effect of the
MSPB’s ruling as definitive of her VA employee
status as “permanent” with routine entitlements in-
cluding DAB hearing rights. (See Pro se Plaintiff-
Appellant’s Dual Motion to Extend Time and Motion
to Clarify, Dec. 23, 2009, p. 5, 15-17.)
The effects of the MSPB’s ruling are, (1) Petitioner-
Appellant was “permanent” because only a perma-
nent VA employee could have the DAB procedure
rights that VA successfully argued to the MSPB—
and the MSPB ruled—she could avail herself of at the
VA, (2) the MSPB’s ruling that determined Petitioner
is a “VA permanent” is the law of the case including
on a remand to the VA to properly litigate her claims
(University of Tennessee v. Elliott, supra, 478 U.S.
788, 798 fn. 6, 799, 106 S. Ct. 3220, 3226, 92 L. Ed.
2d 635 (1986); New Hampshire v. Maine, supra,), and
(3) the MSPB’s ruling, beyond being the law of the
case, is forever fixed upon Respondent-Appellee VA
because the MSPB ruling resulted from Respondent-
Appellee VA’s successful arguments.
CONCLUSION
Judicial estoppel demands that VA be made to live
with the legal effects of its badfaith but successful
arguments to the MSPB. Because of VA’s switching
positions and badfaith arguments that deprived
Petitioner of effective hearing rights, Courts should
impose judicial estoppel on Respondent in the most
severe manner possible. VA must be ordered to view
and treat Petitioner as a former employee who was
“permanent” when terminated by a hearing board
that had no subject matter jurisdiction over her.
28
Respondent-Appellee VA should be ordered to treat
Petitioner as “VA Permanent” for all purposes in-
cluding acknowledging and providing to her full
Disciplinary Appeals Board due process and hearing
rights.
Respectfully submitted,
Of Counsel JEFFREY C. GRASS, Pro Bono

Counsel of Record
MICHAEL J. MYERS, Pro Bono
Bank of America Tower
THE UNIVERSITY OF SOUTH
101 E. Park Blvd.
DAKOTA SCHOOL OF LAW
Suite 600
414 East Clark Street
Plano, Texas 75074
Vermillion, SD 57069
(214) 273-7290
(605) 677-6343
jcgrass@gmail.com
June 30, 2010

1a
APPENDIX A
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ATLANTA REGIONAL OFFICE
————
DOCKET NUMBER
AT-0752-04-0165-I-1
————
SAUNDRA J. COUNCE, RN
Appellant,
vs.
Agency.
————
AGENCY MOTION TO DISMISS
Comes now the Agency, Department of Veterans
Affairs, and would move that the appellant’s petition
for appeal be dismissed as not within the jurisdiction
of the Board. The Agency provides the following
Memorandum in support of this motion.
MEMORANDUM IN SUPPORT OF MOTION FOR
DISMISSAL FOR LACK OF JURISDICTION
The Department of Veterans Affairs, pursuant to
the Board’s Order of December 9, 2003, submits this
Memorandum in Support of Dismissal of the above
appeal for lack of jurisdiction.
1. Appellant is a 38 U.S.C. Section 7401(1) employee
and all adverse employment actions based on conduct
or performance are governed by 38 U.S.C. Sections
7461-7464. To be subject to the Board’s jurisdiction,
2a
appellant must be appointed to her position under
38 U.S.C. 7401(3), otherwise she does not meet the
definition of an “employee” for MSPB appellate juris-
diction under 5 U.S.C. 7511(b)(10). See Lamberson v.
VA, 80 MSPR 648, 662 (1999).
2. In spite of her arguments to the contrary,
Appellant was a probationary employee at the time of
her termination from VA employment. She neglects
to provide the full documentation showing her job
status during her brief employment at the VA. She
was hired, effective June 17, 2001 to a Staff Nurse—
0610, grade level 1/3, under an excepted appointment
not to exceed (NTE) July 16, 2002. She was therefore
a temporary full-time employee appointed under
38 USC 7405(a)(1). See Agency Exhibit 1. Prior to the
expiration of her appointment, on April 21, 2002,
Appellant’s position was converted to an excepted
appointment, permanent, full-time under 38 USC
7401(1). See Agency Exhibit 2. Therefore, on April 21,
2002, Appellant began her two year probationary
period as mandated by 38 USC 7403(b)(1). When her
employment was terminated, effective October 3, 2003,
Appellant was still within her probationary period.
3. There is no support or authority for Appellant’s
contention that her status as a probationary employee
in any way removes her from the category of being a
38 USC 7401(1) employee. In her quoted excerpt from
38 USC 7461(c), Appellant describes herself. She was
“employed on a full-time basis under a permanent
appointment”. 38 USC 7461(c). Agency Exhibit 2 clearly
shows in block 24 that Appellant was a permanent
employee. Further, the Agency Exhibit 2 clearly
shows that Appellant was “subject to completion of 2
year probationary period commencing 04-21-2002.
She is therefore subject to the exclusive remedy for
3a
major adverse actions, that is, an appeal to the VA
Undersecretary for Health for the empanelment of a
Disciplinary Appeals Board. She has not made such
an appeal. MSPB is without jurisdiction to hear this
appeal of a major adverse action by a 38 USC 7401(1)
employee.
4. Appellant cites this Board to Dick v. Department
of Veterans Affairs, 83 MSPR 464 (1999) as support-
ing her contention that her status as a 38 USC
7401(1) employee does not preclude MSPB IRA
jurisdiction. In Dick, the Board reasoned that even
though Appellant was a Title 38 employee, there was
no Disciplinary Appeals Board jurisdiction nor was
the action grievable. Without any remedy available to
Appellant other than an IRA appeal to the Board, it
was reasoned that in such a case Title 38 did not
preclude IRA jurisdiction. Appellant here ignores the
statement of the Board that “IRA jurisdiction over
this appeal under the WPA of 1989 is not precluded
by Title 38, because on the undisputed facts the actions
complained of were not subject to the Disciplinary
Appeals Board procedure.” Ms. Counce’s case here is
very distinguishable from that recounted in Dick
because she is subject to Disciplinary Appeals Board
procedure. Since a discharge is expressly defined in
38 USC 7461(c)(2)(E) as a major adverse action, Appel-
lant should have filed an appeal with the Disciplinary
Appeals Board. She did not do so. Appellant had Title
38 remedies unlike the appellant in Dick.
5. It does not appear from the Appellant’s petition
that she has raised any matter that is within the
Board’s appellate jurisdiction. The appellant bears
the burden of proof as to the issue of the Board’s
jurisdiction. 5 CFR § 1201.56(a)(2)(i). As the appellant
has failed to raise any matter within the jurisdiction
4a
of the Board, the Agency moves the Board to find that
a hearing is not warranted in this case. See Rose v.
Department of Health and Human Services, 721 F.2d
355, 357 (Fed. Cir. 1983).
WHEREFORE, the Agency moves for the dismissal
of this Appeal.
Respectfully submitted this the 31st day of
December, 2003.
/s/ Alan E. Foster

Alan E. Foster
Attorney for the Agency
5a
[Insert Fold-In]
6a
[Insert Fold-In]
7a
————
DOCKET NUMBER
AT-0752-04-0165-I-1
————
SAUNDRA. J. COUNCE, RN
Appellant,
v.
U.S. DEPARTMENT OF VETERANS AFFAIRS

Agency.
————
AGENCY’S RESPONSE TO
PETITION FOR REVIEW
————
Alan E. Foster
Staff Attorney
VA Office of Regional Counsel
3322 West End Avenue
Nashville, TN 37203
615-695-4624
615-695-4634 (facsimile)
Attorney for Agency
8a
AGENCY RESPONSE
Pursuant to 5 CFR 1201.114(d), the Agency would
hereby make the following as its Response to the
Appellant’s Petition for Review, received in the
Agency’s Office of Regional Counsel on April 15,
2004. In essence, the Response to Appellant’s Petition
for Review is that the contents of the Petition do not
comport with the requirements of 5 CFR 1201.115(a).
Appellant has not addressed any of the Initial Deci-
sion’s findings that she was appointed pursuant to 38
USC 7401(1) thus having no right of appeal to the
Board from an adverse action, that she did not prop-
erly raise a claim of whistleblowing reprisal with the
OSC, and that the removal was a major adverse action
involving professional conduct and is not reviewable
by the Board as an IRA appeal. The Agency would
thereby ask the Initial Decision be upheld and the
Petition dismissed.
STATEMENT OF THE CASE
Appellant, as a Registered Nurse, was appointed to
her position under the provisions of 38 U.S.C. Section
7401(1) and all adverse employment actions based on
conduct or performance are governed by 38 U.S.C
Sections 7461-7464. To be subject to the Board’s
jurisdiction, appellant must be appointed to her posi-
tion under 38 U.S.C. 7401(3), otherwise she does not
meet the definition of an “employee” for MSPB
appellate jurisdiction under 5 U.S.C. 7511(b)(10). See
Lamberson v. VA, 80 MSPR 648, 662 (1999); Pinchon
v. VA, 242 F. 3d 1367, 1371 (Fed. Cir. 2001)
In spite of her arguments to the contrary, Appel-
lant was a probationary employee at the time of her
termination from VA employment. She neglects
to provide the full documentation showing her job
9a
status during her brief employment at the VA. She
was hired, effective June 17, 2001 to a Staff Nurse—
0610, grade level 1/3, under an excepted appointment
not to exceed (NTE) July 16, 2002. She was therefore
a temporary full-time employee appointed under 38
USC 7405(a)(1). See Agency Exhibit 1. On April 21,
2002, prior to the expiration of her appointment,
Appellant’s position was converted to an excepted
appointment, permanent, full-time under 38 USC
7401(1). See Agency Exhibit 2. Therefore, on April 21,
2002, Appellant began her two year probationary
period as mandated by 38 USC 7403(b)(1). When her
employment was terminated, effective October 3, 2003,
Appellant was still within her probationary period.
The Initial Decision correctly points out that
Appellant has “not properly sought corrective action
from OSC regarding her removal, a fundamental pre-
requisite for establishing Board jurisdiction over an
IRA appeal.” Initial Decision, at p. 2. Appellant does
not address the finding of the Administrative Judge
that the action she sought from OSC only concerned
her performance review and not her removal. Appel-
lant also never addressed in her Petition for Review
the judge’s finding that the removal was a major
adverse action involving professional conduct and
would not be reviewable by the Board.
RESPONSE TO APPELLANT’S ARGUMENT
Appellant’s cover letter to the Board, which actually
appears to address this petition to the VA Discipli-
nary Appeals Board, does address any of the rulings
made by administrative judge in his Initial Decision.
Instead, Appellant has rehashed the facts as she sees
them, which led to her removal. She does not address
the jurisdictional issues leading to the decision to
dismiss this appeal due to the lack of jurisdiction of
10a
the Board. The Agency will not address the factual
issues discussed by Appellant in her cover letter since
those issues did not snake up any part of the
administrative judge’s Initial Decision.
CONCLUSION
There has been no allegation in the Petition for
Review that the administrative judge made an error
in interpreting a law or regulation. There has also
been no presentation of any significant new evidence
not available for earlier consideration. This Petition
should be denied and the Initial Decision of the
administrative judge made Final.
Respectfully submitted,
/s/ Alan L Foster
Alan L Foster
Staff Attorney
VA Office of Regional Counsel
3322 West End Avenue, Suite 509
Nashville, TN 37203
615-695-4624
615-695-4634 (facsimile)
Attorney for Agency
11a
APPENDIX B
DEPARTMENT OF VETERANS AFFAIRS
Tennessee Valley Healthcare System
Nashville Campus
1310-24th Avenue South
Nashville TN 37212-2637
[Seal]
September 19, 2003
In Reply Refer To: 626105
VA Tennessee Valley Healthcare System

Nashville Campus
Nelda Rouse, Executive Vice-President
AFGE Local 2400
1310-24th Avenue South
Nashville, TN 37212-2637
Subject: Saundra Counce, RN - Separation During

Probationary Period
Dear Ms. Rouse:
This is official notice that Saundra Counce, RN,
will be separated from employment as a Staff Nurse
with the Tennessee Valley Healthcare System effec-
tive October 3, 2003. On April 21, 2002, her Tempo-
rary Excepted Appointment under the authority of
38 USC 7405(a)(1) vas converted to an Excepted
Appointment as a Staff Nurse under the authority of
38 USC 7401(1). Appointments under this authority
are subject to the satisfactory completion of a two
year probationary period. The probationary period is
an extension of the appointment process during
which the supervisor observes the employee’s conduct
and performance on the job. If concerns are raised to
indicate an employee has not demonstrated fitness or
12a
qualifications for continued employment, a Summary
Review Board may be convened to review the
employee’s services.
A Professional Standards Board (Board) was con-
vened to conduct a summary review to obtain the
available facts and determine whether Ms. Counce
was fully qualified and satisfactory based on allega-
tions of falsification of medical records related to
medication administration, insubordination, and
failure to follow acceptable nursing standards of care
and practice related to patient care. After a full and
thorough investigation the Board determined Ms.
Counce did falsify medication administration records
in that she documented she had administered medi-
cations when she had not. She was found to have
been insubordinate to her supervisor when she failed
to report for duty as scheduled and directed by
her supervisor. Furthermore, the Board found Ms.
Counce failed to provide an acceptable level of patient
care by not following acceptable nursing standards of
care and practice related to patient care when she
left a patient naked in bed, Lily exposed with the
room door open, and lying in feces.
Based on these findings the Board recommended
Ms. Counce be separated from employment during
the probationary period. In conducting my review of
the record I found no justification to disagree with or
mitigate the Board’s recommendation. Ms. Counce’s
conduct and displayed lack of professionalism are not
in meeting the standards of care expected to be
provided to our veteran patients. Therefore, I
approved the Board Action and have made the deci-
sion to remove you from employment.
Ms. Counce may file a discrimination complaint
through the Department of Veterans Affairs (DVA)
13a
by contacting an EEO Counselor at the DVA, Office of
Resolution Management (ORM/08), 3400 Lebanon
Pike, Room A305, Murfreesboro, TN, 37129, or at
(615) 867-6048, within 45 calendar days after the
effective date of your separation. She may also contact
Patricia S. Brown, EEO Discrimination Complaints
Liaison Officer, at (615) 327-4751, extension 5302.
It will be necessary for Ms. Counce to contact
Nursing Service to obtain clearance papers in order
to properly clear this station of any indebtedness and
return any government property in her possession,
such as ID/Parking Cards, keys, uniforms, etc. prior
to issuance of her final salary and/or lump sum pay-
ment for any accumulated annual leave. This must be
done prior to her clearing station by 4:00 PM on
October 3,2003. Ms. Counce will receive a Bill of
Collection for any indebtedness she has incurred that
is not properly cleared.
Ms. Counce will be carried in an active duty status
pending the effective date of her separation.
If you or Ms. Counce have questions regarding this
decision. you may contact Dr. James L. Harris, Asso-
ciate Director for Patient Services, at extension 5393.
For information regarding procedural matters, you
may contact Mr. Lee S. Danielson, Employee/Labor
Relations Specialist, Nashville Campus, Room 1-D1
12, or at extension 6371.
/s/ David N. Pennington

David N. Pennington, FACHE
Director
cc: S. Counce (118N)
Nurse Executive (118)
HR Officer (05)
14a
APPENDIX C
[Logo] UNITED STATES OF AMERICA
ATTESTATION
I HEREBY ATTEST that the attached documents
identified as MSPB’s Initial Decision dated March 2,
2004; MSPB’s Final Order dated December 23, 2004;
United States Court of Appeals for the Federal Cir-
cuit’s Mandate dated May 16, 2005; Agency’s Re-
sponse to the Appellant’ s Petition for Review dated
May 3, 2004; and Agency’ s Motion to Dismiss dated
January 2, 2004, represent true and complete copies
of the original documents of the Merit Systems
Protection Board in the appeals of Saundra J. Counce
v. Department of Veterans Affairs, Docket Numbers
AT-0752-04-0165-I-1 and AT-0752-04-0165-L-1, and
that the administrative records are under my official
custody and control on this date.
[Seal]
on file in this board
June 24, 2010 /s/ [Illegible]
Date for William D. Spencer
Clerk of the Board
15a
ATLANTA REGIONAL OFFICE
————
DOCKET NUMBER
AT-0752-04-0165-1-1
————
SAUNDRA J. COUNCE,
Appellant,
v.

Agency.
————
Saundra J. Counce, Nashville, Tennessee, pro se.
Alan Foster, Esquire, Nashville, Tennessee,
for the agency.
————
DATE: March 2, 2004
————
BEFORE
Joseph E. Clancy
Administrative Judge
————
INITIAL DECISION
Appellant filed an appeal postmarked November
27, 2003 from the agency’s action removing her from
the position of Staff Nurse, AD-610-I, effective Octo-
ber 3, 2003. For the reasons set forth below, the
appeal is DISMISSED.
16a
The record reflects that appellant was hired under
a temporary appointment to the position of Staff
Nurse, effective June 17, 2001, pursuant to 38 U.S.C.
§7405(a)(1). On April 21, 2002, appellant was con-
verted to a permanent appointment pursuant to 38
U.S.C. §7401(1), subject to her successful completion
of a two-year probationary period. In August of 2003,
appellant was advised that her performance and
conduct were being reviewed, and that her alleged
falsification of medication records and inadequate
patient care, inter alia, would be examined. By letter
dated September 23, 2003, appellant was informed
that she would be separated from service on October
3, 2003, based upon her unacceptable conduct and
performance.
Individuals serving under an appointment pur-
suant to 38 U.S.C. §7401(1), as was appellant, are
excluded from coverage under subchapter H of 5
U.S.C. Chapter. 75, and have no right of appeal to
the Board from an adverse action. See 5 U.S.C.
§7511(b)(10); 38 U.S.C. §7425(a)(8); Pichon v. Depart-
ment of Veterans Affairs, 67 M.S.P.R. 325, 327 (1995).
Appellant acknowledged this fact, but asserted that
the Board has jurisdiction over her removal as
an Individual Right of Action (IRA) appeal, claiming
that the action was in reprisal for her having
engaged in whistleblowing activity. (Appeal File,
Tabs 4 & 7). In this regard, Board jurisdiction over
an IRA appeal attaches when remedies before the
Office of Special Counsel (OSC) have been exhausted,
and an individual sets forth non-frivolous allegations
that she engaged in whistleblowing activity, and that
said activity was a contributing factor in an agency’s
decision to take or fail to take a covered personnel
action. See Yunus v. Department of Veterans Affairs,
242 F.3d 1367, 1371 (Fed. Cir. 2001).
17a
As previously noted, appellant’s removal is not
“otherwise appealable” to the Board under any law,
rule or regulation. See 5 C.F.R. §1209.2(b)(2). The
matter may well constitute a personnel action under
5 U.S.C. §2302(a)(2XA), and could therefore form the
basis for an IRA appeal if the above-noted criteria
had been met. Appellant’s submissions, however,
reflect that she has not properly sought corrective ac-
tion from OSC regarding her removal, a fundamental
prerequisite for establishing Board jurisdiction over
an IRA appeal. 1 See Rusin v. Department of the Trea-
sury, 92 M.S.P.R. 298, 302 (2002). In addition,
appellant’s alleged protected activity, i.e., her “anti-
bullying” campaign, did not appear to constitute
whistleblowing under 5 U.S.C. §2302(b)(8). (Appeal
File, Tab 4).
Moreover, it appears that appellant’s removal was
a major adverse action involving professional conduct
as contemplated under 38 U.S.C. §7462, and such an
action is not reviewable by the Board as an IRA
appeal. See Dick v. Department of Veterans Affairs,
83 M.S.P.R. 464, 466-467 (1999); Cochran v. Depart-
ment of Veterans Affairs, 67 M.S.P.R. 167, 173 (1995).
Appellant alleged that she was not subject to this
exclusive internal review process because she was not
a permanent employee, citing 38 U.S.C. §7461(c).
(Appeal File, Tab 7). The agency claimed, however,
1
Although appellant sought corrective action from OSC in
August of 2003 concerning her performance review, OSC closed
that matter prior to her removal. More importantly, appellant’s
submissions reflect that she did not raise a claim of whistle-
blowing reprisal with OSC as contemplated under 5 U.S.C.
§2302(b)(8). She did allege another prohibited personnel practice,
i.e., a violation of 5 U.S.C. §2302(b)(12), but such a claim cannot
serve as the basis for an IRA appeal. (Appeal File, Tab 4, Exhibit
E).
18a
that she was subject to the Disciplinary Appeals
Board (DAB) procedure. (Appeal File, Tab 6). Indeed,
while appellant may have been subject to completion
of a probationary period, she was serving under a
permanent appointment to a position listed at 38
U.S.C. §7401(1). Id. It therefore appears that the
DAB had “exclusive jurisdiction” to review appel-
lant’s removal, and that she is not eligible to file an
IRA appeal in any event. See Dick, supra.
In light of the foregoing, I find that appellant
has not been subjected to a matter appealable
to the Board, and that the Board lacks jurisdiction
over the appeal. See 5 U.S.C. §7701(a); 5 C.F.R.
§1201.56(a)(2)(i); Khan v. United States, 201 F.3d
1375, 1381 (Fed. Cir. 2000). It is therefore appropri-
ate that the appeal be dismissed for lack of Board
jurisdiction. In light of this determination, I will
make no findings regarding the timeliness of the
appeal. 2
DECISION
The appeal is DISMISSED.
FOR THE BOARD: /s/ Joseph E. Clancy
Joseph E. Clancy
Administrative Judge
2
As jurisdiction has not been established in this case,
appellant’s request to certify the matter as a class action is
denied.
19a
DOCKET NUMBER
AT-0752-04-0165-1-1
————
SAUNDRA J. COUNCE,
Appellant,
v.
Agency.
————
Saundra J. Counce, Nashville, Tennessee, pro se.
Alan Foster, Esquire, Nashville, Tennessee,
for the agency.
————
Dec 23, 2004
————
BEFORE.
Neil A. G. McPhie, Chairman
Susanne T. Marshall, Member
FINAL ORDER
The appellant has filed a petition for review in this
case asking us to reconsider the initial decision
issued by the administrative judge. We grant
petitions such as this one only when significant new
evidence is presented to us that was not available for
consideration earlier or when the administrative
judge made an error interpreting a law or regulation.
The regulation that establishes this standard of
review is found in Title 5 of the Code of Federal
Regulations, section 1201.115 (5 C.F.R. § 1201.115).
20a
After fully considering the filings in this appeal, we
conclude that there is no new, previously unavailable,
evidence and that the administrative judge made no
error in law or regulation that affects the outcome.
5 C.F.R. § 1201.115(d). Therefore, we DENY the
petition for review. The initial decision of the admin-
istrative judge is final. This is the Board’s final deci-
sion in this matter. 5 C.F.R. § 1201.113.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request the United States
Court of Appeals for the Federal Circuit to review
this final decision. You must submit your request to
the court at the following address:
for the Federal Circuit
717 Madison Place, N.W.
Washington, DC 20439
The court must receive your request for review no
later than 60 calendar days after your receipt of this
order. If you have a representative in this case, and
your representative receives this order before you do,
then you must file with the court no later than 60
calendar days after receipt by your representative. If
you choose to file, be very careful to file on time. The
court has held that normally it does not have the
authority to waive this statutory deadline and that
filings that do not comply with the deadline must be
dismissed. See Pinat v. Office of Personnel Manage-
ment, 931 F.2d 1544 (Fed. Cir. 1991).
If you need further information about your right to
appeal this decision to court, you should refer to the
federal law that gives you this right. It is found
in Title 5 of the United States Code, section 7703
21a
(5 U.S.C. § 7703). You may read this law as well as
review the Board’s regulations and other related
material at our web site, http://www.mspb.gov.
FOR THE BOARD: /s/ [Illegible]
for Bentley M. Roberts, Jr.
Clerk of the Board
Washington, D.C.
22a
NOTE: Pursuant to Fed. Cir. R. 47.6, this order is not
citable as precedent. It is a public record.
UNITED STATES COURT OF APPEALS
FOR THE FEDERAL CIRCUIT
————
Filed May 16 2005
————
ORDER
The petitioner having failed to file the required
Statement Concerning Discrimination, it is
ORDERED that the petition for review be, and the
same hereby is, DISMISSED, for failure to prosecute
in accordance with the rules.
FOR THE COURT,
/s/ Jan Horbaly

Jan Horbaly
Clerk
05/16/05
cc: Clerk’s Office, MSPB
SAUNDRA J. COUNCE
CLAUDIA BURKE
ISSUED AS A MANDATE: 05/16/05

COUNCE V VA, 05-3128
MSPB - AT0752040165-I-1
23a
APPENDIX D
DEPARTMENT OF VETERANS AFFAIRS
OFFICE OF HUMAN RESOURCES MANAGEMENT
WASHINGTON DC 20420
[Seal]
May 3, 2004
Saundra Counce, RN
276 White Bridge Road, Apt. 36
Nashville, TN 37209
Dear Ms. Counce:
Your appeal package, undated, has been received

and reviewed by this office. This is to advise you are
not entitled to appeal your termination during
probationary period to a VA Disciplinary Appeals
Board.
Disciplinary Appeals Boards appointed under 38
USG 7464 have exclusive jurisdiction to review major
adverse actions, which arise out of, or include, a
question of professional conduct or competence of
section 7401(1) employees who have successfully
completed their probation period. Employees
appointed under Section 7401(1) must serve a two (2)
year probationary period. You were appointed under
38 USG 7401(1) on April 21, 2002. Your two-year
probation period commenced on this date. Prior
service in a temporary appointment under Section
7405(A){1) does not count towards completion of the
probation period. Therefore, you had not successfully
completed your probation period at the time of your
discharge on October 3, 2003. Therefore, you are not
24a
entitled to appeal your discharge to a VA Disciplinary
Appeals Board.
Sincerely yours,
/s/ Catherine J. Baranek

Catherine J. Baranek
Employee Relations Specialist
Office of Human Resources Management
cc: Director
Tennessee Valley Healthcare System
Nashville Campus
1310-246 Avenue South
Nashville, TN 37212-2637
25a
APPENDIX E
[Insert Fold-In]
26a
[Insert Fold-Ins]
27a
[Insert Fold-Ins]
28a
APPENDIX F
[Insert Fold-In]
29a
[Insert Fold-Ins]
30a
[Insert Fold-Ins]
31a
[Insert Fold-Ins]
32a
[Insert Fold-Ins]
33a
[Insert Fold-Ins]
34a
[Insert Fold-Ins]
35a
[Insert Fold-Ins]
36a
APPENDIX G
Department of Memorandum
Veterans Affairs
Date: August 1, 2003
From: Chairperson, Nurse Professional Standards
Board
Subj: Summary Probationary Review and Con-
vening of the Nurse Professional Standards
Board To: Saundra Counce. RN (626/318N)
1. This is to notify you that a Nurse Professional
Standards Board (NPSB) will be convened on August
21, 2003 at 9:30 am in the Administrative Conference
Room, Director's Suite, first floor, Nashville Campus,
to conduct a summary review of your performance
and conduct during your probationary period and
make recommendations concerning your retention in
or separation from the Veterans Health Administra-
tion. The review is being held pursuant to 38 U.S.C.
(United States Code) section 7403(b), and will be
based upon available records and information
furnished by you and others who may be called by the
NPSB.
2. The NPSB is to review the following alleged
deficiencies in your performance and conduct:
Falsification of medical records related to medi-
cation administration, insubordination (failure to
report to duty, not training, as directed by the
Nurse Manager), and failure to follow acceptable
nursing standards of care and practice related to
patient care.
37a
3. You are entitled to:
a. Review documents relied upon in initiating or
recommending this summary Board review,
subject to applicable disclosure restrictions;
b. An impartial review by the NPSB;
c. Respond orally and/or in writing to the NPSB
concerning the reasons for the review; and
d. Be represented by an individual of your
choice, provided the choice would not create a
conflict of interest. This is not an adversarial
proceeding so your representative's role will be
limited to assisting you in exercising your right
to respond orally and/or in writing to the reasons
for the review. However, any response to a
request for information from the NPSB during
its review is considered a part of your reply.
Accordingly, your representative may assist you
in these matters.
4. Please notify me by August 15, 2003 whether
you will attend the NPSB meeting in person, a writ-
ten statement, or both. Please include in your notice
the name, address, and occupation of your represent-
ative, should you choose to have one. If you wish to
submit a written statement to the Board, it is also to
be submitted to me by the above date.
5. After review, the NPSB will forward its recom-
mendations through the Chief of Staff, to the Direc-
tor, Mr. David Pennington, for final decision. If the
NPSB finds you not to be fully qualified and satisfac-
tory, your separation will be recommended. You will
be advised of the results of this review in writing.
6. Additional information about these procedures
maybe obtained by contacting Mr. Lee S. Danielson,
38a
Employee/Labor Relations Specialist, Human
Resources Management Service, Nashville Campus,
Room 1-D112, or at extension 6371.
/s/ Sharon Krajnak
Sharon Krajnak,
cc: Chief, Human Resources (05)
Nurse Executive (118)
39a
APPENDIX H
UNPUBLISHED
FOR THE FOURTH CIRCUIT
————
No. 00-2450
————
MASOOD N. KHAN,
Plaintiff-Appellant,
v.
TOGO D. WEST, JR.,
Secretary of Department of Veteran Affairs,
Defendant-Appellee.
————
Appeal from the United States District Court for the
Western District of North Carolina, at Charlotte.
Richard L. Voorhees, District Judge.
(CA-99-186-3-V)
Argued: April 5, 2001
Decided: May 7, 2001
————
Before WILKINSON, Chief Judge, MOTZ,
Circuit Judge, and Patrick M. DUFFY,
United States District Judge for the District of
South Carolina, sitting by designation.
————
Reversed by unpublished per curiam opinion.
————
40a
COUNSEL
ARGUED: Louis L. Lesesne, Jr., LESESNE &
CONNETTE, Charlotte, North Carolina, for Appel-
lant. James Michael Sullivan, Assistant United
States Attorney, Charlotte, North Carolina, for
Appellee.
ON BRIEF: Mark T. Calloway, United States Attor-
ney, Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in
this circuit. See Local Rule 36(c).
OPINION
PER CURIAM:
Plaintiff Masood Khan is a permanent employee of
the United States Department of Veterans Affairs
(“VA”). In this case, Khan sought a declaration that
his previous service as a temporary VA employee
satisfied the two-year probationary period required of
all permanent VA employees under 38 U.S.C. § 7403.
The district court ruled against Khan on the grounds
that such an interpretation of Section 7403 would
yield absurd results. See Khan v. West, 122 F. Supp.
2d 596 (W.D.N.C. 2000). Because a plain reading of
the statutory text indicates that Khan has already
served his probationary period, we must reverse the
judgment.
I.
Beginning in 1983, Dr. Masood Khan was em-
ployed as a physician by the United States Depart-
ment of Veterans Affairs (“VA”). Khan served at the
VA Medical Center in Salisbury, North Carolina.
Prior to 1996, Khan was not a United States citizen.
Therefore, his employment was on a full-time tem-
porary (year-to-year) basis pursuant to 38 U.S.C.
41a
§§ 7405 and 7407. In 1994, the VA did not renew
Khan’s employment contract. In response, Khan in-
itiated a claim of discrimination based on race,
religion, and national origin under § 717 of Title VII
of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-16.
Khan prevailed in a subsequent administrative pro-
ceeding when the VA issued a final agency decision
holding that Kahn was the victim of illegal dis-
crimination. Pursuant to this decision, the VA noti-
fied Khan that he was permanently assigned to work
as a cardiologist in the VA facility in Walla Walla,
Washington. Khan had become an American citizen
in 1996, and he was therefore eligible for permanent
employment. However, Khan initiated this lawsuit
because he sought to remain at a VA facility in North
Carolina.
The parties resolved this dispute by entering into a
Settlement Agreement on February 9, 2000. Under
the terms of the Agreement, the VA was to appoint
Khan to a full-time permanent position of Staff
Physician at the VA facility in Salisbury, North Caro-
lina. This appointment was effective as of February
13, 2000. Under the Settlement Agreement, the VA
also was to give Khan “credit for his temporary
service as if his employment had never been inter-
rupted from July 31, 1983 through the effective date
of his full-time appointment, to wit: February 13,
2000.”
Following his reinstatement, the VA notified Khan
that he was subject to completion of a two-year
probationary period, beginning February 13, 2000.
The VA informed Khan that this probationary period
was required of all permanent VA employees pur-
suant to 38 U.S.C. § 7403. Khan claimed, however,
that his previous service as a temporary employee
42a
satisfied Section 7403’s probationary requirement.
Khan sought a declaration from the district court
that the VA had violated the terms of the Settlement
Agreement by subjecting him to what was, in his
view, an additional probationary period.
The district court agreed that the plain language of
Section 7403 seemed to recognize Khan’s previous
service for purposes of the probationary period. See
Khan, 122 F. Supp. 2d at 598. However, the court
held that because such a reading of Section 7403
would yield an absurd result, it would deny Khan’s
motion. Id. Khan now appeals.
II.
Section 7403 creates a two-year probationary period
for certain VA employees. See 38 U.S.C. § 7403. 1 Sec-
1
38 U.S.C. § 7403 states, in relevant part:
(a)(1) Appointments under this chapter of healthcare pro-
fessionals to whom this section applies may be made only
after qualifications have been satisfactorily established in
accordance with regulations prescribed by the Secretary,
without regard to civil-service requirements.
(2) This section applies to the following persons appointed
under this chapter:
(A) Physicians.
(B) Dentists.
(C) Podiatrists.
(D) Optometrists.
(E) Nurses.
(F) Physician assistants.
(G) Expanded-function dental auxiliaries.
(b)(1) Appointments described in subsection (a) shall be for a
probationary period of two years.
38 U.S.C. § 7403.
43a
tion 7403 states that the probationary period applies
to physicians, among others, who are “appointed
under this chapter.” 38 U.S.C. § 7403(a)(2), (b)(1).
The “under this chapter” language in Section
7403(a)(2) refers to Chapter 74 of Title 38, of which
Section 7403 is a part. Khan was appointed under 38
U.S.C. §§ 7405 and 7407, both of which are also part
of Chapter 74. Therefore, a plain reading of the
statute indicates that Section 7403 and its accom-
panying probationary period applied to Khan’s ser-
vice as a temporary employee. Accordingly, Khan has
long ago concluded his probationary period as a re-
sult of his seventeen years of temporary employment.
The VA contends that this reading of Section 7403
is incorrect. The VA does not argue that its inter-
pretation of Section 7403 is due deference under
Chevron, U.S.A., Inc. v. Natural Resources Defense
Council, Inc., 467 U.S. 837 (1984). Rather, the VA
presents a textual argument that Section 7403 only
applies to permanent employees. Section 7403 itself
in no way differentiates between permanent and tem-
porary employees. However, the VA contends that
Section 7401, which provides for the appointments
of certain VA physicians, 2 is limited to permanent
employees. Even assuming this to be true, the lan-
2
38 U.S.C. § 7401 states, in relevant part:
There may be appointed by the Secretary such personnel
as the Secretary may find necessary for the medical care of
veterans (in addition to those in the Office of the Under
Secretary for Health appointed under section 7306 of this
title), as follows:
(1) Physicians, dentists, podiatrists, optometrists, regis-
tered nurses, physician assistants, and expanded-function
dental auxiliaries.
38 U.S.C. § 7401.
44a
guage of Section 7403 is not limited to employees
appointed under Section 7401. Rather, by its very
terms, Section 7403 applies to all physicians “ap-
pointed under this chapter.” See 38 U.S.C. § 7403(a)(2).
While Khan may have been appointed under Section
7405 rather than Section 7401, both sections fall
under Chapter 74. Therefore, Section 7403’s proba-
tionary period began to run when Khan was first
appointed under Section 7405.
Finally, while it may seem odd to require tem-
porary employees to serve a two-year probationary
period, interpreting Section 7403 in this way does not
yield an absurd result. In fact, the statute might have
been designed to apply to situations exactly like this
one—namely, where a long-serving temporary em-
ployee is promoted to permanent-employee status. In
such cases, Congress may have concluded that an
additional two-year probationary period would be
unnecessary since the temporary employee would
have already served for an extended period under the
VA’s supervision. In all events, we shall apply the
statute as Congress wrote it.
III.
For the foregoing reasons, the judgment of the
district court is
REVERSED.
45a
APPENDIX I
NOT RECOMMENDED FOR
FULL-TEXT PUBLICATION
FOR THE SIXTH CIRCUIT
[Filed Nov 12, 2009]
————
No. 08-5031
————
SAUNDRA J. COUNCE,
v.
Defendant-Appellee.
————
ON APPEAL FROM THE
UNITED STATES DISTRICT COURT FOR THE
MIDDLE DISTRICT OF TENNESSEE
————
ORDER
Before: MOORE, CLAY, and KETHLEDGE, Circuit
Judges,
Saundra J. Counce, proceeding pro se, appeals a
district court order directing a verdict for defendant
in her action filed pursuant to 42 U.S.C. § 1983 and
Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§ 2000e, alleging employment discrimination. This
case has been referred to a panel of the court
pursuant to Rule 34(j)(1), Rules of the Sixth Circuit.
46a
Upon examination, this panel unanimously agrees
that oral argument is not needed. Fed. R. App. P.
34(a).
Counce, a fifty-six-year-old Hispanic female, began
work for defendant as a staff nurse on June 17, 2001,
under a temporary appointment. In April 2002, her
position was converted to a permanent appointment,
subject to a two-year period of probation. On July 7,
2003, Counce’s supervisor requested her termination
based, primarily, on an incident that occurred in
June 2003 involving patient care. Counce’s perfor-
mance and conduct were subsequently reviewed be-
fore the Nurse Professional Standards Board which
found Counce accountable for falsification of medical
records relating to medication administration, failure
to follow acceptable nursing standards of care, and
insubordination, Counce was terminated as of Octo-
ber 3, 2003.
Counce filed her complaint in district court in
February 2006, alleging the following claims: employ-
ment discrimination based on race, sex, and age;
hostile work environment; violation of privacy rights;
and retaliation. Counce’s retaliation claim centered
around an allegation that she was fired because she
had complained about workplace bullying and sug-
gested that the bullying might have been motivated
by her Hispanic background. The defendant filed a
motion to dismiss or, alternatively, for summary
judgment. The district court granted the motion as to
all claims except the claim of retaliation; the case
proceeded to trial on this claim. Following the
presentation of evidence, the district court granted
defendant judgment as a matter of law and dismissed
the action. Although Counce’s briefs to this court are
difficult to parse, it appears that she challenges
47a
on appeal the district court’s decision granting a
directed verdict against her on the retaliation claim.
We review the grant or denial of a directed verdict
by the trial court under the same standard used by
that court in determining whether or not it was
appropriate to grant the motion. Lewis v. City of
Irvine, 899 F.2d 451, 454 (6th Cir. 1990). The court
must, without weighing the credibility of the wit-
nesses, ascertain whether the record contains suffi-
cient evidence from which the jury could find in favor
of the party against whom the motion is made. Id.
Applying that standard here, we conclude that the
district court did not err in directing a verdict against
Counce on her retaliation claim. As the district
court correctly observed, a plaintiff in a retaliation
case must demonstrate “a causal connection between
the protected activity and the adverse employment
action.” Nguyen v. City of Cleveland, 229 F.3d 559,
563 (6th Cir. 2000). Although the district court pa-
tiently permitted Counce to reopen the record several
times, she introduced no evidence of a connection
between her termination and her complaints about
workplace bullying. Judgment as a matter of law was
therefore appropriate.
The judgment of the district court is affirmed. Rule
34(j)(2)(C), Rules of the Sixth Circuit.
ENTERED BY ORDER OF THE COURT
/s/ Leonard Green

Clerk
48a
FOR THE SIXTH CIRCUIT
[Filed Apr 01, 2010]
————
No. 08-5031
————
SAUNDRA J. COUNCE,
v.
Defendant-Appellee.
————
ORDER
Before: MOORE, CLAY, and KETHLEDGE, Circuit
Judges.
Saundra J. Counce, proceeding pro se, moves this
court to clarify its order of November 11, 2009, to
resolve her jurisdictional claim. The November 11,
2009, order affirmed the order of the district court
directing a verdict for defendant in Counce’s action
filed pursuant to 42 U.S.C. § 1983 and Title VII of
the Civil Rights Act of 1964, 42 U.S.C. § 2000e,
alleging employment discrimination. Additionally,
Counce requests that this court grant her forty-five
days from the time it rules on her motion for
clarification in which to file a motion for rehearing.
We construe Counce’s motion to clarify as a timely
petition for rehearing. See United States v. James,
555 F.3d 563, 563 (7th Cir.), cert. denied, 129 S. Ct.
2035 (2009).
49a
In her motion, Counce argues that the Nurse
Professional Standards Board, which found that
Counce falsified medical records and failed to follow
acceptable nursing standards of care, lacked jurisdic-
tion to review her employment performance. The
record clearly indicates that Counce was still under a
two-year probationary period, measured from her
starting date as a permanent employee, when she
was brought before the Nurse Professional Standards
Board. Thus, she was subject to its jurisdiction. See
38 U.S.C. § 7403(b)(1) and (2).
Further, after reviewing this court’s prior decision,
it does not appear that the panel overlooked or
misapprehended any point of law or fact. See Fed. R.
App. P. 40(a). Accordingly, Counce’s motion to clarify
construed as a petition for rehearing is denied, and
her request for an extension in which to file a petition
for rehearing is denied as moot.
ENTERED BY ORDER OF THE COURT
/s/ Leonard Green

Clerk

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No.

Supreme Court of the United States

SECRETARY OF THE UNITED STATES

On Petition for a Writ of Mandamus to the

PETITION FOR A WRIT OF MANDAMUS

Of Counsel JEFFREY C. GRASS, Pro Bono

June 30, 2010

APPENDIX F ....................................................... 28a

APPENDIX G ...................................................... 36a

APPENDIX H ...................................................... 39a

By reason of Defendant-Appellee Veterans Admin-

Supreme Court of the United States

AN ORDER BY WRIT OF MANDAMUS

SUMMARY FACTS AND PROCEEDINGS

3. PROBATIONARY PERIOD FOR 38 U.S.C. 7401(1)

5 CFR § 315.704 Conversion to career employment from inde-

1. ESTABLISHMENT a. Professional Standards Boards for

1. SCOPE. This chapter contains the policy and procedures

§ 7403 was unconditional. (Appendix E, p. 27a, compare the

probationary period (§ 7403 (b) (1)) beyond June 16, 2003.

probationary or permanent. The issue is not whether the 6th

Of Counsel JEFFREY C. GRASS, Pro Bono

June 30, 2010

/s/ Alan E. Foster

U.S. DEPARTMENT OF VETERANS AFFAIRS

VA Tennessee Valley Healthcare System

Subject: Saundra Counce, RN - Separation During

/s/ David N. Pennington

DEPARTMENT OF VETERANS AFFAIRS,

FOR THE COURT,

/s/ Jan Horbaly

ISSUED AS A MANDATE: 05/16/05

Dear Ms. Counce:

Your appeal package, undated, has been received

/s/ Catherine J. Baranek

ENTERED BY ORDER OF THE COURT

/s/ Leonard Green

ENTERED BY ORDER OF THE COURT

/s/ Leonard Green

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